As Islamic Structures Are Targeted, Why Are Courts Ignoring the Places of Worship Act?

The recent spate of litigations being allowed by courts which seek to change the nature of religious structures fly squarely in the face of the provisions of the Places of Worship Act as well as various precedents.

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Last week, a Mathura court ruled that the suit seeking the removal of the Shahi Idgah mosque in the city on the grounds that it was built on the land of the ‘Krishna Janmabhoomi’ (the birthplace of Lord Krishna), is maintainable. 

The order was passed by district judge Rajeev Bharti, who overturned a civil court order dismissing the suit and observed that the suit will stand restored.

The revision petition was filed by Ranjana Agnihotri on behalf of Hindu deities Bhagwan Shrikrishna Virajman and Asthan Shri Krishna Janmbhoomi, challenging the last order that dismissed their suit.

The plaintiffs, in their suit, have claimed that a 13.37-acre plot of land, on which the mosque stands, belongs to the Katra Keshav Dev temple on the grounds that it was the birthplace of Lord Krishna.

On September 30, 2020, a civil court had dismissed the suit, citing the bar on admitting the case under the Places of Worship (Special Provisions) Act, 1991. This decision was appealed before the Mathura district court.

The appellants asserted that as devotees of Lord Krishna, they have a right to move the suit in view of their fundamental religious rights under Article 25 of the constitution.

The lower court had rejected the suit on the grounds that if this suit is registered, a large number of worshippers will come to the court. The appeal, on the other hand, contended that a suit cannot be rejected on the ground that several others may also approach the court.

After the 2019 Babri Masjid-Ram Janmbhoomi verdict, the country has seen a spurt in the number of cases filed against Islamic structures which claim that these structures were built by Mughal emperors by demolishing Hindu temples. At present, we have the following litigations pertaining Hindu and Muslim places of worship: 

1. Hindu Mahasabha plea on Shahi Idgah mosque

Recently, the Hindu Mahasabha filed a plea before a civil court in Mathura seeking the ‘purification’ of the Shahi Idgah mosque. Dinesh Sharma, treasurer of the right-wing Hindu outfit has claimed in the plea that the mosque was built on the sanctum sanctorum of Shri Krishna Janmabhoomi and has sought permission from the court to perform ‘Abhishek’ (purification) and worship Lord Krishna at the site.

Also read: The Ayodhya Verdict is Based on a Strange Feat of Logic

2. The ongoing Gyanvapi mosque case

This plea has come close on the heels of the Gyanvyapi mosque litigation. The Supreme Court last week transferred the matter to the Varanasi district judge, citing the “complexity” and “sensitivity” of the civil suit.

“Having regard to the sensitivity of this civil suit, this case before the civil judge Varanasi shall stand transferred and be heard by a senior and experienced judicial officer of UP Judicial services. Thus, case transferred from Civil Judge (senior division), Varanasi to District Judge, Varanasi. The application filed by plaintiff under Order 7 Rule 11 CPC shall be decided on priority by the District Judge on transfer of suit,” the court said

The matter pertains to an appeal filed by the Anjuman Intezamia Masjid committee of Gyanvyapi mosque against the Allahabad high court order permitting a court commissioner – appointed by a civil court in Varanasi – to inspect and conduct a survey and videography of the mosque, over which Hindus and Muslims alike have laid claims on the right to worship.

The petitioner in the original Gyanvyapi suit – Varanasi-based lawyer Vijay Shankar Rastogi – had claimed that the mosque had been constructed illegally.

After a fresh hearing of Rastogi’s petition in April, 2021, the Varanasi court ordered the survey of the mosque complex. At the time, the Varanasi court directed the Archaeological Survey of India (ASI) to constitute a five-member committee of experts to carry out the survey and submit its report. 

Also read: The Kashi Vishwanath-Gyanvapi Equation: A Parable for People, Power, Politics

The Varanasi district judge will decide sequence in which the petitions and objections will be heard today, May 24.

3. Taj Mahal an old Shiva temple?

Another recent example is the Taj Mahal litigation wherein advocate and Bharatiya Janata Party (BJP) leader Rajneesh Singh had filed a petition before Allahabad high court seeking the opening of over 20 sealed rooms inside the Taj Mahal.  

Singh had argued in his plea that many Hindu groups had claimed the Taj Mahal was an old Shiva temple called the ‘Tejo Mahalaya’.

A division bench of Justices D.K. Upadhyay and Subhash Vidyarthi had dismissed the petition on May 12 and had pulled up the BJP leader for bring before it a debate “meant for drawing rooms and not a court of law”.

The same was dismissed by a division bench of Justices DK Upadhyay and Subhash Vidyarthi of the Allahabad High Court.

“Tomorrow you’ll come and ask us to go to chambers of Honourable judges? Please, don’t make a mockery of the PIL system,”  the court had said.

4. Vagdevi temple-Kamal Maula mosque dispute

Another example of such a litigation is related to the Bhojshala monument in Madhya Pradesh. While Hindu’s claim that the monument is a temple of Vagdevi (Hindu deity Saraswati), Muslims claim it to be the Kamal Maula mosque. In 2003, the ASI had struck an arrangement wherein Hindus are allowed to do puja in the complex every Tuesday and Muslims are allowed to offer namaz there every Friday.

However, a petition has recently been filed by an organisation known as the Hindu Front for Justice before Madhya Pradesh high court seeking exclusive access to the shrine for Hindus and challenging the ASI order permitting Muslims to pray inside the complex.

The petition claimed, “Only the members of the Hindu community have a fundamental right under Article 25 of the Constitution of India to perform puja and rituals at the place of Goddess Vagdevi/ Saraswati within the premises of ‘Saraswati Sadan’, commonly known as ‘Bhojshala’ situated in Dhar,” Firstpost quoted the petition as saying.

The petition also argues that members of Muslim community have no right to use any portion of the aforesaid property for any religious purposes. 

On May 13 this year, the Madhya Pradesh high court issued notice on the matter to the Union and state governments as well as the ASI.

5. The Qutab Minar case

The last such example is the Qutub Minar complex litigation. The suit alleged that the Shree Vishnu Hari temple and 27 Hindu and Jain temples were partially destroyed by Qutub Ud-Din Aibak, a general in the army of Mohammed Ghori, during the construction of the property, known as Quwwut-Ul-Islam. As such, it sought the restoration of the deities and the right to worship within the premises.

This petition was, however, dismissed in December 2021, by civil judge Neha Sharma, who observed that past wrongs cannot be basis for disturbing present and future peace.

“Cognisant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands…” the court had said

The decision, however, was recently challenged before additional district judge Pooja Talwar of the Saket court, who allowed the matter in February this year. Notice in the case was sent to the ASI which told the court that no temple can be revived in the complex given that the Qutab Minar is a protected monument under Section 3(3) of the Ancient Monuments Preservation Act, 1904.

Also read: ASI Says Can’t Revive Worship at Qutub Minar Complex, Court Reserves Order

What does the law say?

With each new litigation targeting religious structures, concerns around the relevance of the Places of Worship Act are growing. The Act explicitly lays down the following:

  1. Section 3: Bar on conversion of places of worship
  2. Section 4(2): The religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.
  3. Section 4(2) : Any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.

The above sections make it clear that there is a bar not only on the conversion of a religious place, but that all places of worship (except the disputed land of the Babri Masjid) must maintain the same character as they did on 15th August, 1947 and must be left out of the purview of judicial review i.e. Section 4(1). 

Also read: Understanding the Gyanvapi Mosque Case: What Does the Places of Worship Act Say?

The question that thus arises is: how come courts are overstepping the 1991 Act and allowing suits seeking alterations to religious structures and adjudicating on them?

Petitioners have claimed that they are squarely covered under Section 4(3) of the Act, which grants exemption to structures that are ancient and historical monuments, archaeological sites, or are covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or “any other law for the time being in force”.

The courts that have ruled in favour of the maintainability of these suits will now determine whether the aforesaid litigations are permitted, as per the exceptions detailed under Section 4(3)(a) of the Places of Worship Act; or are barred, as per the rest of the provisions of the same Act.

Moreover, even if the above matters are covered under the aforesaid exception, can ancient and historical monuments be used for a purpose which runs counter to their nature? 

The court of civil judge Neha Sharma had passed a lengthy judgement answering this question last year, while dismissing the Qutub Minar plea. It had observed that ancient and historical monuments cannot be used for a purpose which runs counter to their nature as religious places of worship, but can always be used for some other purpose which is not inconsistent with their religious character.

“Once a monument has been declared to be a protected monument and is owned by the government, the plaintiffs cannot insist that the place of worship must actually and actively be used for religious services,” the court had said. 

It was also observed that endeavours must be made to enforce the objective of the Ancient Monuments and Archaeological Sites and Remains Act, and that the purpose of the Places of Worship Act, 1991 was to maintain the secular character of India.

“Our country had a rich history and has seen challenging times. Nevertheless, history has to be accepted as a whole. Can the good be retained and bad be deleted from our history? Thus, harmonious interpretation of both the statutes is required to give full force to the objective behind the Places of Worship Act, 1991,” the civil court had said.